Martin “Al” Koski and his spouse of five years, James Fitzgerald. (Susan Symonds/Infinity Portrait Design for GLAD)

By Joe DavidsonMay 31, 2012

Federal employees are the vanguard in the fight against an unjust federal law that legalizes discrimination against gays and lesbians.

The workers are winning.

Their latest victory against the Defense of Marriage Act came Thursday in Boston with a unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the 1st Circuit. It said the law, which defines marriage as a union between a man and a woman, is unconstitutional.

This is the first time a federal appeals court has found DOMA unconstitutional, according to Gay and Lesbian Advocates and Defenders, the organization representing plaintiffs in the case.

“We’re absolutely elated,” said one plaintiff, Martin “Al” Koski, who retired from the Social Security Administration in 2005. “We’re very, very happy. One more domino has fallen and there is one more domino to go.”

Until the Supreme Court rules against DOMA, or Congress acts, Koski, a Bourne, Mass., resident, won’t be able to enroll his spouse of almost five years and partner of 37 years, James Fitzgerald, in the Federal Employees Health Benefits Program. The same generally applies to other federal workers with a same-sex spouse.

In a similar case in California, however, Karen Golinski, a federal court employee, has been allowed to cover her spouse, Amy Cunninghis, following a U.S. District Court ruling against DOMA. The Office of Personnel Management told agencies last month that “the ruling in the Golinski case does not apply to anyone other than Ms. Golinski. OPM has been directed by the Department of Justice to continue applying the Defense of Marriage Act to all other situations.”

The Court of Appeals delayed implementation of its order in deference to a higher power: “Only the Supreme Court can finally decide this unique case.”

So for now, Koski and Fitzgerald, along with postal employee Nancy Gill, the named plaintiff in the case, and her spouse must continue to bear the emotional and financial burden caused by Uncle Sam’s refusal to accept the reality of their marriages.

The emotional toll has not been quantified, but the financial cost can be.

“It would be much better and much less expensive if I could have him on my policy,” Koski said in an interview. “It would save us thousands of dollars each year.”

FEHBP would have covered much more of Fitzgerald’s hearing aid and cataract surgery costs than his insurance did, according to Koski: “We would have saved about $12,000.”

Unlike Gill, Koski didn’t expect the Office of Personnel Management to approve his request to allow his spouse to be covered by the federal insurance program. Having worked for the government for so long, he knew a denial was coming, even if it took months to get it.

“I wanted to have it on record,” he said.

Gill, however, was unpleasantly surprised.

“It didn’t even dawn on me that when I went to add Marcelle [Letourneau, Gill’s spouse] that my marriage wasn’t valid in the eyes of the government,” Gill told the Federal Diary last year. “I go in and do my job, and I just want the rights that other people have.”

Equal rights is all this is about.

DOMA “will penalize those couples by limiting tax and Social Security benefits to opposite-sex couples in their own and all other states,” the ruling says. “For those married same-sex couples of which one partner is in federal service, the other cannot take advantage of medical care and other benefits available to opposite-sex partners in Massachusetts and everywhere else in the country.”

OPM and the Justice Department had no comment on the ruling. President Obama supports DOMA’s repeal, and the administration no longer defends the law in court as it once did. The administration, however, continues to enforce it.

“The battle isn’t over,” GLAD officials said in a statement. “We expect the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives to appeal the decision.”

Although “Bipartisan” is in its title, BLAG represents the House Republican leadership and not Democrats. A spokesman for Speaker John A. Boehner (R-Ohio) had no comment on the ruling, and BLAG’s lawyers did not respond to a request for comment.

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